Gibson v. Cty of Louisville

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Gibson v. City of Louisville No. 02-5473 ELECTRONIC CITATION: 2003 FED App. 0233P (6th Cir.) File Name: 03a0233p.06 Appellant. Angela T. Dunham, JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________ RONALD LEE GILMAN, Circuit Judge. Kin Gibson was KIN GIBSON , X terminated from his job with the City of Louisville in 1998. - Gibson sued the City, arguing that he was fired in retaliation Plaintiff-Appellant, - for requesting leave under the Family and Medical Leave Act - No. 02-5473 (FMLA). The jury returned a verdict in favor of the City. v. - Gibson now appeals, contending that the district court’s > instruction to the jury contained an inaccurate statement of the , law. For the reasons set forth below, we AFFIRM the CITY OF LOUISVILLE , - Defendant-Appellee. - judgment of the district court. N I. BACKGROUND Appeal from the United States District Court for the Western District of Kentucky at Louisville. Gibson claimed that he was terminated in retaliation for No. 99-00324—John G. Heyburn II, Chief District Judge. requesting family medical leave to undergo back surgery, in violation of the FMLA, 29 U.S.C. §§ 2601-2654. The City Argued: April 14, 2003 disagreed, contending instead that his termination resulted from insubordination, leaving his workstation without Decided and Filed: July 17, 2003 permission, and being absent from work without authorization for three days. Over Gibson’s objection, the district court Before: SILER, GILMAN, and GIBBONS, Circuit Judges. instructed the jury that “[y]ou must answer the following question: do you find from the evidence that the City of _________________ Louisville terminated Kin Gibson from his job because he requested FMLA leave?” The jury found in favor of the City. COUNSEL On appeal, Gibson argues that the above instruction was an inaccurate statement of the relevant law. He thus requests ARGUED: Timothy R. McCarthy, NUTT & MAYER, that the judgment entered by the district court on the jury Louisville, Kentucky, for Appellant. Angela T. Dunham, verdict be reversed and that a new trial be granted. JEFFERSON COUNTY ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. ON BRIEF: Timothy R. McCarthy, NUTT & MAYER, Louisville, Kentucky, for

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II. ANALYSIS In making this argument, Gibson primarily relies on the Seventh Circuit case of King v. Preferred Technical Group, A. Standard of review 166 F.3d 887 (7th Cir. 1999) (reversing the district court’s grant of summary judgment for the employer because the This court reviews jury instructions to determine whether employee had made out a prima facie case of FMLA they are a correct interpretation of the relevant law. Rogers retaliation and had raised a genuine issue of material fact v. T.J. Samson Cmty. Hosp., 276 F.3d 228, 232 (6th Cir. regarding the employer’s proffered nondiscriminatory reason 2002). We look at them “as a whole to determine whether for terminating her). The court in King used language found they adequately inform the jury of relevant considerations and in the Code of Federal Regulations to state that “an employer provide a basis in law for the jury to reach its decision.” may not consider the taking of FMLA leave as a negative Vance v. Spencer County Public Sch. Dist., 231 F.3d 253, 263 factor in employment actions.” Id. at 891; see 29 C.F.R. (6th Cir. 2000). Because the correctness of jury instructions § 825.220(c). Gibson uses the negative-factor language to is a question of law, they are reviewed de novo. Jones v. argue that he does not have to prove that retaliation was the Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th Cir. “sole reason” for his termination, but only that it was a 1998). motivating or substantial factor in that decision. B. The jury instructions, taken as a whole, adequately He is correct in so far as he argues that he did not need to interpreted the relevant law prove that discrimination was the sole reason for his termination. But to say that the City fired Gibson “because he Gibson urges us to set aside the judgment against him requested FMLA leave” does not answer the question of because the jury instructions allegedly contained an whether the action was taken “solely because of” or only “in inaccurate statement of the law. Specifically, he contends that part because of” his request. In order to answer this question, the “because” language quoted above misled the jury into we must analyze the jury instructions as a whole to determine believing that retaliation for the exercise of his rights under whether they adequately directed the jury to focus on the the FMLA had to be the sole reason for his termination. ultimate issue in this case—whether Gibson’s termination Gibson argues that something more akin to a “mixed-motive was motivated by his FMLA request. analysis” must be used in the jury instructions, so that the retaliation need only be a factor (not the factor) in the In Skrjanc v. Great Lakes Power Service Company, 272 termination decision. The mixed-motive analysis permits a F.3d 309 (6th Cir. 2001), this court held that the McDonnell finding of liability where the employer is motivated by both Douglas burden-shifting framework should be applied to unlawful considerations and legitimate reasons. Desert FMLA retaliation claims that are based upon indirect Palace v. Costa, 123 S. Ct. 2148 (2003) (holding that direct evidence. Id. at 315. Whether Gibson’s case consisted of evidence is not required in order to prove discrimination in direct or indirect evidence or some combination of the two is, mixed-motive cases under Title VII); Price Waterhouse v. for the reasons discussed below, ultimately irrelevant. The Hopkins, 490 U.S. 228, 240-41 (1989) (plurality opinion) district court, however, used the McDonnell Douglas (applying the mixed-motive analysis in a gender framework in instructing the jury. Under McDonnell discrimination case based on a failure to promote). Douglas, a plaintiff relying upon indirect evidence of unlawful discrimination must first establish a prima facie case. The employer then has the burden of articulating a

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legitimate nondiscriminatory reason for the adverse established his prima facie case of unlawful discrimination. employment action. Finally, the plaintiff must show that this Consequently, the jury instructions focused on the last two nondiscriminatory reason was in fact pretextual and that parts of the McDonnell Douglas framework by advising the unlawful discrimination was the real reason for the adverse jury of the considerations to take into account in deciding action. Id.; see Reeves v. Sanderson Plumbing Prods., Inc., whether Gibson had proven that he was unlawfully 530 U.S. 133, 153-54 (2000) (holding, in an age- discriminated against. First, the district court quoted the discrimination action, that the establishment of a prima facie language of the FMLA and informed the jury that “it would case and sufficient evidence of pretext may permit the trier of have been unlawful for the City of Louisville to terminate fact to find unlawful discrimination). [Gibson] in retaliation for exercising or attempting to exercise his rights under the statute.” The jury was then asked the “The ultimate question in every employment discrimination question that is the focus of Gibson’s appeal, i.e., “do you case involving a claim of disparate treatment is whether the find from the evidence that the City of Louisville terminated plaintiff was the victim of intentional discrimination.” Kin Gibson from his job because he requested FMLA leave?” Reeves, 530 U.S. at 153. Once Gibson had established his This question was immediately followed by a discussion of prima facie case and the City had come forth with its points to keep in mind when answering it. The district court legitimate nondiscriminatory reasons, the McDonnell Douglas reminded the jury of the reasons proffered by the City of burden-shifting framework fell away and the trier of fact was Louisville for his termination—the legitimate left to determine the ultimate question of discrimination. St. nondiscriminatory reasons—and it told the jury that “in order Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-511 (1993) to return a verdict in favor of Mr. Gibson, you must believe (“If . . . the defendant has succeeded in carrying its burden of from [the] evidence that those were not the City’s actual production, the McDonnell Douglas framework—with its reasons for discharging Mr. Gibson.” presumptions and burdens—is no longer relevant.”). Perhaps the instructions in the present case would have In other words, once the case was submitted to the trier of been more precise if they had explicitly said that Gibson need fact, the legal framework used and the question of whether show that requesting FMLA leave was only “a determining Gibson’s proof contained direct or circumstantial evidence and motivating factor” in the City’s decision. Reeves, 530 became irrelevant. The jury’s task at that point was to simply U.S. at 153 (emphasis added). The lack of such language, determine whether or not unlawful discrimination was the real however, did not cause the instructions overall to be an reason for the adverse employment action. Regardless of the inaccurate statement of the law in the present case. Indeed, framework used for presenting the proof, the underlying the Supreme Court has held that the use of the words substantive law is the same. Desert Palace v. Costa, 123 S. “because of” in Title VII do not mean “solely because of.” Ct. 2148 (2003) (holding, in a mixed-motive employment Price Waterhouse, 490 U.S. at 241. There is no question that discrimination case that, regardless of the presentation of the jury was told to determine whether the City’s proffered direct or circumstantial evidence, the plaintiff must prove that reasons were its true motivation, or whether it was motivated unlawful discrimination was a motivating factor in the by unlawful discrimination in terminating Gibson; i.e., was employment decision by a preponderance of the evidence). Gibson fired “because he requested FMLA leave?” In other words, the jury was clearly charged with answering the This is precisely the view of the law that the district court’s ultimate question—whether Gibson was the victim of jury instructions, taken as a whole, reflected. Gibson had unlawful discrimination in violation of the FMLA.

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III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court.